High net worth grey divorce lawyer Lorne N MacLean, QC deals with silver separations and grey divorces where income and assets are significant but both parties may be nearing the end of their careers. As such, high net worth grey divorce lawyer, Lorne N. MacLean, QC, knows it’s critical no mistakes are made because there is no margin for error financially when one or both spouses are entering their golden years of retirement.
Lorne N. MacLean, QC has handled some of the biggest family cases in Canada including Supreme Court of Canada cases of Young, Leskun and Lightle v Kotar helping set the law that guides all family law litigants. Reach Lorne at his flagship MNP waterfront office by calling 604-602-9000.
A top High net worth grey divorce lawyer such as Lorne N. MacLean, QC knows the stakes are high in silver separations involving significant assets and income.
Is Lump Sum Support A Good Idea? Not Always!
High net worth divorce lawyer Lorne Maclean QC helps parties negotiate mediate or litigate disputes over support and property division with the hopes that both parties can move forward successfully financially.
- So what happens when a lump sum spousal support settlement meant to settle spousal support forever is alleged to be too small of an amount?
- What happens when spouses use the wrong figures?
High net worth grey divorce lawyer Lorne N MacLean, QC warns clients that lump sum support settlements may be too high or too low when factors such as salary raises or reductions, illness, job loss, death, business setbacks and remarriage are considered.
High net worth grey divorce lawyer Lorne N MacLean, QC also warns that the Divorcemate calculators are flawed in that they can use an inappropriate discount rate and have no built in discount for negative contingencies. Further, spousal support calculated when adult children receive child support is much lower than what is payable after those children are adults.
Can a Final Spousal Support Lump Sum Settlement Be Set Aside or Varied to Increase Support Payments?
In the recent spousal support variation case of Sandy v Sandy the wife accepted a lump sum settlement after advice of an accountant and her lawyer to finally settle support. The husband trusted the settlement to be final and the wife’s spousal support claim over and above the lump sum amount was dismissed. But a court always has the power to vary spousal support if there is a material change in circumstances. Good counsel always seek a dismissal of additional spousal support and this was done but there is a line of authority from a case called Gil- Sager that says you cannot dismiss spousal support in the future as you never know what might radically change.
After a multi day trial Ms. Sandy was successful in getting additional monthly support of $5,500 support from her husband who had now been forced to retire as an accountant. Substantial income was also attributed to the husband despite a non-compete clause that hampered his ability to work.
Here are extracts that Lorne N. MacLean, QC views as the crucial parts for his high net worth grey divorce clients:
[4] Ms. Keene argues the material change in circumstances on which to vary spousal support occurred on two fronts: (1) her pre-existing heart condition became much worse so that she could not become self-sufficient as expected; and (2) Mr. Sandy’s income increased dramatically after the consent order.
[35] An agreement for spousal support, as incorporated into an order, is subject to variation under s. 17 of the Divorce Act: Clark v. Clark, 2016 BCCA 130; Turpin v. Clark, 2009 BCCA 530; L.M.P. v. L.S., 2011 SCC 64 at paras. 29, 31-33. A court must first consider whether a material change in the conditions, means, needs or other circumstances of the parties has occurred since the making of the original spousal support order: L.M.P. at para. 29. The onus is on the party seeking the variation: L.M.P. at para. 31. To be a material change, it must be one that if known at the time, would have resulted in different terms: L.M.P. at para. 32. The way the court must treat the original order is as follows from para. 33 of L.M.P.:
[33] The focus of the analysis is on the prior order and the circumstances in which it was made. Willick clarifies that a court ought not to consider the correctness of that order, nor is it to be departed from lightly (p. 687). The test is whether any given change “would likely have resulted in different terms” to the order. It is presumed that the judge who granted the initial order knew and applied the law, and that, accordingly, the prior support order met the objectives set out in s. 15.2(6). In this way, the Willick approach to variation applications requires appropriate deference to the terms of the prior order, whether or not that order incorporates an agreement.
[36] As the Court said in L.M.P. at para. 30, Willick v. Willick, [1994] 3 S.C.R. 670, is the proper approach for s. 17 variation orders. Willick requires there to be a material change in circumstances that if known at the time, would likely have resulted in different terms.
[37] A substantial increase in the payor party’s income post-agreement or order may constitute a material change: Turpin.
[38] An increase in income after separation in and of itself is not sufficient to warrant an increase in spousal support: Dextraze v. Dextraze, 2004 BCSC 215. Increases due simply to factors unrelated to the claimant will not entitle a claimant to a variation: Younger v. Younger, 2016 BCSC 990; Judd v. Judd, 2010 BCSC 153.
[39] As the Court of Appeal stated recently in Walker v. Maxwell, 2015 BCCA 282 at para. 43:
Spousal support under the Act is not determined solely by the party’s income. Rather, pursuant to s. 162 of the Act, the amount and duration of spousal support “must be determined on consideration of the conditions, means, needs and other circumstances of each spouse”, including “the length of time the spouses lived together”, “the functions performed by each spouse during the period they lived together”, and any “agreement between the spouses, or an order, relating to the support of either spouse.” Thus, an increase in post-separation income may not always result in an increase in spousal support entitlement since the court must address other factors in determining the appropriate level of support.
[40] In short, once a material change in circumstances has been established, the variation order should “properly reflec[t] the objectives set out in s. 17(7),…[take] account of the material changes in circumstances, [and consider] the existence of the separation agreement and its terms as a relevant factor”: Hickey v. Hickey, [1999] 2 S.C.R. 518 at para. 27. A court should limit itself to making the variation which is appropriate in light of the change.
[41] Mr. Sandy argued that there is no material change and no variation should occur. He contends that Ms. Keene received $411,000 more than he did of the assets. She had independent legal advice and advice from Clayton Schultz, a partner of Mr. Sandy’s at PwC. She was advised by counsel David Hart not to accept Mr. Sandy’s offer. She chose to act against that advice.
[42] Ms. Keene agrees that she accepted the proposal but testified that she did so wishing to have the matter resolved quickly.
[43] She seeks a lump sum amount of $300,000 and indefinite periodic support of either $5,226 per month or $6,003 per month depending on whether Mick is found to be a child of the marriage. Various Spousal Support Advisory Guideline [SSAG] calculations were provided.
[50] To outline her financial position, Ms. Keene filed four Form 8 Financial Statements including on August 18, 2014 and June 17, 2015. Ms. Keene’s expenses averaged $5,890 per month after deducting the children’s expenses and her debt payments. Taking into account her income of $25,000, [ the court found the husband’s to be almost $300,000]that some of these expenses may fluctuate and that she may earn other income, I order Mr. Sandy to pay $5,500 per month in spousal support commencing July 1, 2014 on an indefinite basis.
In the end result, a husband who in good faith thinking he made a final deal on spousal support was shocked to find out he owed substantial monthly support after he was forced to retire. BC and Canadian Case law goes both ways on finality with respect to final agreements on spousal support so this case is likely headed to a higher court. Here the husband’s income increased after separation by roughly $141,00 a year which isn’t any big surprise for a professional at a big firm and the judge felt this was material enough to reopen the lump sum support award.
If you need a High Net Worth Grey Divorce Lawyer to help you get things done right, call Lorne N MacLean, QC founder of Vancouver’s top rated* family law firm according to prestigious Top Choice Awards, toll free at 1-877-602-9900 In Calgary and Vancouver as well as Surrey, Kelowna and Fort St John.
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